Obama and Romney vs. the Bill of Rights

We don't know whether Obama or Romney will come out on top in the election. But it's a safe bet that civil liberties will not.

Back in the early days of the Republic, the framers went to great trouble to draft and ratify the Bill of Rights. And every four years, our leaders pay homage to the framers by neglecting or disparaging that creation.

Not all of it, of course. Americans generally favor religious freedom (the First Amendment) and the right to own guns (Second). But the ban on any establishment of religion (First) is a favorite target of believers who think the government has a sacred duty to promote Christianity.

Then there are the Fourth Amendment, which bans unreasonable searches, and the Fifth Amendment, which guarantees the right against self-incrimination. These are often seen as obstructions erected for the perverse benefit of bad people, who would not be so bad if they had read more Bible stories in school.

So politicians rarely rise to defend these provisions or the rights they safeguard. Civil liberties are the Penn State Nittany Lions of our political realm: They have many enemies, and their friends often look embarrassed.

When George W. Bush was president, Democrats often decried his habit of trampling on freedoms in his zeal to stamp out terrorism at any cost. Running in 2008, Barack Obama decried Bush's aggressive use of presidential power in the name of national security.

But Democrats usually worry about civil liberties only when the other party is violating them. Obama is not always recognizable as the same person now that he is president. He has maintained the prison camp at Guantanamo, continued warrantless surveillance of Americans and carried out lethal drone attacks on U.S. citizens abroad without making public the evidence.

His White House counsel admits that Obama takes a, well, different view of presidential power than he did in 2008. "Until one experiences that first hand, it is difficult to appreciate fully how you need flexibility in a lot of circumstances," Kathy Ruemmler told The Wall Street Journal.

Midway through his term, American Civil Liberties Union Executive Director Anthony Romero pronounced himself "disgusted" with Obama's record. George Washington University law professor Jonathan Turley regards the president as a "disaster not just for specific civil liberties but the civil liberties cause in the United States."

But not all the failings are Obama's. He tried to close Guantanamo and move detainees to U.S. soil, only to face overwhelming opposition from Congress, including many Democrats.

In some ways he has rejected Bush's approach. He ended the use of torture (notably waterboarding) on enemy captives and closed down the CIA's secret prisons. In other matters related to personal freedom, he's been a welcome contrast to Republicans—endorsing the mosque near Ground Zero, abolishing the military's ban on openly gay members and supporting same-sex marriage.

If you're looking for an opponent willing to call Obama out for his disappointing efforts in this realm, Mitt Romney is not the candidate for you. When it comes to civil liberties, he gives every appearance of being Dick Cheney without the charm.

Close Guantanamo and transfer the inmates? Not a chance. In 2007, Romney said, "I want them on Guantanamo, where they don't get the access to lawyers they get when they're on our soil. … My view is we ought to double Guantanamo."

When it comes to torture, the only time he says "no" is when he's asked if he's had enough. Last year, his campaign spokeswoman said Romney does not regard waterboarding as torture and declined to say he would not use it.

Another difference between the two candidates involves the Supreme Court, where neither would be ideal. Obama bitterly rejects the court's view that corporations have a free speech right to spend money on elections. His Supreme Court appointee Sonia Sotomayor signed a dissent concluding that despite the Second Amendment, "the use of arms for private self-defense does not warrant federal constitutional protection from state regulation."

The person Romney chose to head his Justice Advisory Committee is Robert Bork, whose 1987 Supreme Court nomination was rejected largely because of his evident contempt for judicial enforcement of the Bill of Rights. After Bush was criticized by the ACLU and others for his aggressive post-9/11 anti-terrorism measures, Bork said Bush deserved criticism—"for not going far enough."

That's the sort of sentiment that rarely gets a candidate defeated. Right now, we don't know whether Obama or Romney will come out on top in the election. But it's a safe bet that civil liberties will not.